COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69457 STATE OF OHIO, : ACCELERATED DOCKET : : JOURNAL ENTRY Plaintiff-Appellant : : AND v. : : OPINION STANLEY CORNELL, : : PER CURIAM : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 25, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. 321665 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellant: John Gallagher Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellee: Donald Green Alice Friedman Assistant Public Defenders 1200 West Third Street, N.W. 100 Lakeside Place Cleveland, Ohio 44113 -2- PER CURIAM: Plaintiff-appellant the State of Ohio appeals from the trial court order which granted defendant-appellee Stanley Cornell's motion to suppress evidence. The appeal is well-taken. On February 20, 1995, at approximately 3:00 p.m., the Cleveland Police Department's Fourth District headquarters received a citizen complaint of drug activity at Speedy's store, located on the corner of East 131st Street and Harvard Avenue. A detective broadcast the information via police radio. As a result of the transmission, Sgt. Barrow, a vice-unit officer of considerable experience, responded to the scene with two other officers. Barrow was familiar with the area. At the hearing on appellee's motion to suppress, Sgt. Barrow stated the area was one for which the police received frequent complaints of drug activity and one at which previously he had made numerous drug- related arrests. Barrow drove up to the Speedy's, entered the parking lot, and observed a vehicle with three men in it parked at the store. The vehicle was facing outward, which was unusual at a convenience 1 store. The men inside the vehicle were "huddled," i.e., the person in the driver's seat, later identified as appellee, was turned and leaning toward the back seat, as was the person in the passenger's seat, and the person in the back seat was leaning 1 Quoted material indicates testimony given by a witness at the hearing on appellee's motion to suppress evidence. -3- forward toward the other two. They "were making furtive movements with their hands." Barrow and the other officers stopped their car near the other vehicle and exited, then walked toward the vehicle in order "to ascertain if the males had a legitimate purpose for being there." At that point, the men looked up and saw the officers. Appellee appeared "startled," began to get out of the vehicle, and "tossed a plastic bag with white objects to the [passenger side] seat . . . ." Although he observed it only a short time, Barrow believed the objects in the bag were rocks of crack cocaine. Appellee stated he "wasn't doing anything wrong." Appellee's companions immediately put the vehicle in gear and fled. One ultimately escaped; the other, who had originally been seated in the rear seat, was apprehended after a short chase. The officers arrested the man and confiscated the plastic bag, which was still on the passenger seat. It later tested positive for crack cocaine. Appellee waited at the store, which was owned by his father, until the officers returned, at which time he too was arrested. After being informed of his rights, appellee stated the plastic bag "wasn't his dope." Appellee was later indicted on two counts of violation of R.C. 2925.03, viz., drug trafficking and possession of cocaine in an amount less than three times the bulk amount. Appellee pleaded not guilty to the charges. Subsequently, he filed a motion to suppress evidence. The trial court granted the motion on the basis the -4- police officers lacked "a reasonable or articulable suspicion of criminal activity such as to warrant the intrusion in this matter." Appellant argues the officers' actions in this case were appropriate and thus did not violate appellee's constitutional rights. Appellant's arguments are persuasive. The officers were in the area of the store after having just received a complaint of drug activity. Moreover, once they had arrived, they observed the following: 1) the vehicle in which appellee sat backed into a parking space; 2) the men inside the vehicle in a huddle; 3) the men making furtive movements; 4) the men appearing "startled" at the sight of the officers approaching; and, finally, 5) before the officers could speak, appellee hastily exiting the car while at the same time tossing a plastic bag filled with small white objects toward the passenger. From their professional experience, the officers immediately believed the objects to be crack cocaine. Taken as a whole, the foregoing constitute not only sufficient articulable facts upon which to base an investigatory stop of appellee, but since no stop or seizure occurred before the officers saw the plastic bag, also probable cause for his arrest. See, e.g., Michigan v. Chesternut (1988), 486 U.S. 567; California v. Hodari (1991), 499 U.S. 621; State v. Smith (1989), 45 Ohio St.3d 255, rev'd. on other grounds (1990), 494 U.S. 541; see, also, Alabama v. White (1990), 496 U.S. 325; State v. Freeman (1980), 64 Ohio St.2d 291; State v. Bobo (1988), 37 Ohio St.3d 177; State v. Andrews (1991), 57 Ohio St.3d 86; State -5- v. Barnwell (1993), 87 Ohio App.3d 637; cf., State v. Franklin (1993), 86 Ohio App.3d 101. The foregoing recitation of articulable facts demonstrates State v. Carter (1994), 69 Ohio St.3d 57, upon which appellee relies as authority justifying the trial court's decision, is inapposite to this case since in Carter no articulable facts were found. Therefore, the trial court erred in granting appellee's motion to suppress evidence. The order of the trial court is reversed. This case is remanded for further proceedings consistent with this opinion. -6- This cause is reversed and remanded for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellees its costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, PRESIDING JUDGE JAMES M. PORTER, JUDGE JOSEPH J. NAHRA, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .